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'You can't use Google' - EU Parliament

Euro legislation leaves crucial hole

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A number of bullets were dodged as the European Parliament voted on the Harbour proposals for the European broadcast, telecoms and internet industries this week. A couple, sadly, struck home all the same.

The banning of the use of encryption as a way of identifying those breaching intellectual property rights didn't even make it to the voting session, nor did the idea of three strikes and you're cut off from the net - again, originally intended against those sharing others' intellectual property.

The shots not dodged were sometimes minor: service providers will have to provide free filtering software to those who would protect their kiddies from the evils out there. Mandating free supply of software of course rather diminishes the economic incentives for people to write good software to achieve this goal.

Two were more major.

“A competitive market with transparent offerings as provided for in Directive 2002/22/EC should ensure that end-users are able to access and distribute any lawful content and to use any lawful applications and/or services of their choice, as stated in Article 8 of Directive 2002/21/EC.”

That sounds rather benign, but the effect is that it is the European Union which decides what is lawful content and what is not, rather than national authorities. That might mean that, say, German restrictions on the use of the swastika online would be overturned, although we wouldn't bet on it. It might also mean of course that content not to the taste of the Commission might be declared unlawful - not a power we might want them to have.

The second needs a little background explanation. European law operates on the basis of “legislative certainty”. Roughly speaking it's the difference between the Roman Law system of the continent and the English system of Common Law. As Godfrey Bloom, the UKIP MEP says “EU law defines what you may do. What it doesn't say you may do you can't do.” As opposed to the Common Law system which defines what you may not do and anything not expressly banned is allowed.

“End-users are able to access and use services, including information society services, provided within the Community.”

Under the strictures of legal certainty this seems to be stating that we don't have the right, even permission, to access and use services provided outside the community. That's going to be a bit of a bummer for all those US-based services like Google.com, isn't it? ®